At the request of the District Clerk of Harris County you have
asked about citations served pursuant to Rule 106(e), Texas Rules
of Civil Procedure, which specifies that where it is impractical
to secure service by having an officer deliver copies of
citations to defendants, or to mail copies to them, the court may
authorize service 'by any disinterested adult named by the court
in its order. . . .'

You advise that a citizen of Harris County was authorized by a
district court there to serve a citation and a precept upon a
respondent in a divorce action. The person so authorized noted on
the return for each instrument a $20.00 fee for serving it,
evidently intending that such sums be taxed as costs of court in
the matter. You ask if the district clerk is authorized or
required to tax fees for service under Rule 106(e) as court
costs, and if so, in what amounts they should be taxed. You also
ask whether the clerk should file the return of service with the
papers of the suit.

Rule 106 was amended by Supreme Court order dated July 11,
1977, to become effective January 1, 1978. Subsection (e), added
at that time, has not yet been judicially construed by an
appellate court, but we believe it will be read and applied in
conjunction with Rule 107.

Rule 107, as amended, provides that the return of the officer
executing the citation shall be endorsed on the citation and
attached to it, but the rule now specifies, additionally, that
where citation is executed 'as authorized by Rule 106(e) . . .,
proof of service shall be made in the manner ordered by the
court.'

When a person authorized by the court to make such service
delivers to the clerk an instrument which purports to be the
required proof of such service, it is the ministerial duty of the
clerk to accept it and file it. V.T.C.S. art. 1899; Tex. R. Civ.
P. 74; see Wagner v. Garrett, 269 S.W. 1030 (Tex. 1925); cf.
Attorney General Opinion
H-1155 (1978)
(duty to file uncertified
pleadings). An instrument is regarded as filed when it is placed
in the clerk's custody for filing. Newsome v. Boyd, 203 S.W.2d
874 (Tex. Civ. App.--Galveston 1947, no writ).

The taxation of costs is also a ministerial duty of the clerk
which may be corrected by the court. Tex. R. Civ. P. 622;
Hammonds v. Hammonds, 313 S.W.2d 603 (Tex. 1958). Each party to
a suit is liable for all costs incurred by him, but a successful
party may ordinarily recover costs incurred in the suit. Tex. R.
Civ. P. 125, 127, 131. The cost bill prepared by the clerk is
presumptively correct and stands as a judgment unless the trial
court, upon motion, disallows items included in the bill.
Hammonds v. Hammonds, supra; Manzer v. Barnes, 216 S.W.2d 1015
(Tex. Civ. App.--Amarillo 1949, mand. overr.); see Tex. R. Civ.
P. 141, 142, 143.

The fees due sheriffs and constables for serving civil process
are properly taxed as costs of the suit. See V.T.C.S. art.
3933a; Tex. R. Civ. P. 17, 125, 126, 128. However, the Code of
Civil Procedure and the civil statutes are silent about the fee
to be received by a person serving civil process in lieu of the
sheriff or the constable. Cf. Code Crim. Proc. art. 1031 (fees
for criminal process served by peace officer other than sheriff).

In Metcalfe v. McCarty, 301 S.W.2d 263 Tex. Civ. App.--Austin
1957, no writ) a court-appointed surveyor's fee was taxed as a
cost of the suit even though no statute expressly authorized it
or specified the amount to be allowed. The court said that in
such circumstances, fees should be fixed and allowed on a
reasonable basis taking into consideration the circumstances of
the case, the charges made, the type of work performed, and the
evidence offered in support thereof and in opposition thereto.
Cf. City of Hurst v. City of Colleyville, 501 S.W.2d 140 (Tex.
Civ. App.--Fort Worth 1973, no writ) (not allowed where surveyor
not court-appointed); Taormina v. Culicchia, 355 S.W.2d 569 (Tex.
Civ. App.--El Paso 1962, writ ref'd n.r.e.) (auditor not court-appointed).

We believe the courts will adopt the same approach with respect
to the fees of persons authorized by court order to serve process
pursuant to subsection (e) of Rule 106. The propriety of the
amount taxed, if challenged, is a matter for the judicial
discretion of the court.

SUMMARY

It is the ministerial duty of the clerk of the district court
to file returns of process served by 'disinterested persons'
authorized to serve process pursuant to Rule 106(e), Texas Rules
of Civil Procedure, and to include a fee therefor as an item of
the cost bill for the suit. The amount to be taxed is the amount
claimed by the person making the return, unless otherwise ordered
by the judge.